EAT decision on comparators in indirect sex discrimination case

Wednesday 22nd June 2022

In Allen v Primark Stores Ltd, the EAT examined the proper pool for comparison in an indirect sex discrimination case.

Following maternity leave, Ms. Allen requested flexible working arrangements. She was concerned that she would be disadvantaged by Primark’s policy that Department Managers should guarantee their availability to work late shifts. While Primark offered some flexibility, it wanted Ms. Allen to guarantee her availability for the Thursday late shift, which she could not do.

Of 6 Department Managers (including Ms. Allen), only 2 were able to work late on Thursdays. Primark felt that it would leave inadequate cover for holidays and other absences if Ms. Allen was unable to work the Thursday late shift.   Before the ET, Ms. Allen complained that the provision, criterion or practice of being required to guarantee her availability to work placed women generally and her specifically at a disadvantage, constituting indirect sex discrimination.

The pool of comparators included 5 of the Department Managers, being the employees potentially disadvantaged by having to work late on Thursdays. The other manager was excluded from the pool because a flexible working arrangement was in place and he was therefore not affected. Of the 5 managers, 2 men and Ms. Allen were unable to work late on Thursdays. The 2 male employees had childcare commitments that day and they rarely worked the late shift. Primark considered that these employees had an implied contractual entitlement to this arrangement as it had been in place for some time.

When assessing the discriminatory impact of the PCP, the ET concluded that since 2 men and Ms. Allen were disadvantaged by the PCP, it could not be said that women as a group were put at a particular disadvantage. Ms. Allen’s claim for indirect discrimination was therefore dismissed.

The EAT, allowing Ms. Allen’s appeal, held that the ET had erred in its construction of the pool of comparator. The PCP identified was not simply being asked to work the Thursday late shifts, but that Ms. Allen was being required to guarantee her availability. Although the ET found that the disadvantaged male comparators only occasionally worked late on Thursdays when asked and on a voluntary basis, they were not required to guarantee their availability. As there was a material difference between them, the male comparators should not have been in the pool.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.